Writ of Error to the Circuit Court of St. Clair. Before the Hon. G. D. Shortridge.

This was an appeal from a justice of the peace to the circuit court; and the amount being under $20, was tried by the court, without a jury. A bill of exceptions was taken to the judgment of the court, which brings to view the evidence, and on which the circuit court rendered judgment in favor of the defendant in error for $10.

The evidence was, the defendant in error, supposing that the plaintiff was the purchaser of his land at sheriff sale, tendered him the money, say $30, and counted it out, with the view to redeem it. The plaintiff in error took $13 of it, and' told the defendant he would retain this in payment of a note held by the plaintiff in error, against the defendant in error, but stated to him, that he was not the purchaser of his land, informed him who was; the defendant redeemed the land from the purchaser, and sued the defendant to recover back the $13 retained by the plaintiff. The plaintiff in error then proved, that Robert Johnson, and the defendant in error, executed to him, as the administrator of Henry Hall, deceased, a note for $56 37, dated 2d January, 1844, and due at twelve months from date j on which note was a credit of $45 35. That the note was given on the purchase of property belonging to said Henry Hall, deceased. The defendant was the surety of Johnson on the note. It was further shown, that the plaintiff in error had come to a final settlement with the orphans5 court of St. Clair county, as the administrator of said Henry Hall, deceased, and in such settlement, had been charged by the final decree of the court, with the entire amount of the note, and that ever since the plaintiff in error has held the note as his own, in his individual capacity. The plaintiff also proved, that the defendant in error owed him $2 on another transaction, and $81 by way of costs.

This was all the evidence, and the judgment being for the defendant in error, it is here assigned for error, that the court erred in rendering judgment for the defendant.

1. The statute cited by the plaintiff’s counsel does not alter the common law right of a party to a suit refusing to become a witness; and it matters not that no law exists authorizing discoveries in suits before justices of the peace — there being no such law cannot affect the rights of parties. Dig. 314, § 10.

2. The statute allowing judges of superior courts to try appeals without the intervention of a jury, where the amount is under $20, does not deprive the plaintiff, in such a case-, of the right to insist upon notice of a set-off relied upon by the defendant. In this case there were no pleadings, and no notice. Dig. 314, 10.

3. Was the note offered in evidence, a legal set-off to plaintiff’s demand?

Citation profile

How this case has been treated — in progress